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NH Supreme Court: Lesbian can claim parental rights

MARK HAYWARDNew Hampshire Union Leader

The New Hampshire Supreme Court said Wednesday that a lesbian can claim parental rights to a child born to her former partner.

In the unanimous decision, the five-member court overturned the rulings in Derry Family Division court and ordered the judge to decide whether the non-biological parent — referred to in the court case as Susan B — had taken enough actions to qualify as the child’s parent.

If judged a parent, the Supreme Court said Susan can intervene in adoption proceedings that her former partner — Melissa D — and Melissa’s husband have initiated.

In reaching its decision, the Supreme Court relied heavily on the state’s Surrogacy Law, which lays out the instances when a non-biological father can be deemed a parent. The law also encourages two parent-families.

“Two adults — Melissa D and Susan B — intentionally brought Madelyn B into the world and held her out as their child; we cannot read (the Surrogacy Law) so narrowly as to deny Madelyn the legitimacy of her parentage by, and her entitlement to support from, both of them,” reads the 10-page ruling, written by Justice Gary Hicks.

Organizations such as Lambda Legal Defense Fund, the New Hampshire Civil Liberties Union, the Human Rights Campaign, and the National Gay and Lesbian Task Force, signed onto an amicus brief in the case.

Twenty law professors filed another brief in support of Susan.

“This decision clarifies what I have thought all along — our parentage statues are going to be read in a gender-neutral manner,” said Catherine Tucker, a Concord lawyer who specializes in reproductive law.

But she cautioned that lesbian couples should still have their children adopted by the non-biological parent, in part because other states do not recognize gay marriage and parenthood.

The case — In Re: Guardianship of Madelyn B — pitted the two one-time partners against each other. According to the ruling, the two took part in a dedication ceremony at a Unitarian-Universalist Church in 1998, 12 years before the state’s gay marriage law went into effect.

In 2002, Melissa gave birth to Madelyn. The insemination was covered by Susan’s health plan. The couple selected sperm that matched Susan’s Irish heritage. They gave Madelyn the middle and last name of Susan.

Because Susan could not legally adopt Madelyn, she became her guardian. Six years after her birth, the women’s relationship ended, and Madelyn moved in with Eugene D, whom she later married.

Susan paid child support and had regular visitation with Madelyn until 2013, when Melissa told her that Madelyn — then about 11 — no longer wanted to see her.

Melissa had the guardianship terminated, and she and her husband started court proceedings to adopt Madelyn.

Derry Family Court Judge Lucinda Sadler terminated Susan’s guardianship, dismissed her parenting petition and denied her motion to intervene in the adoption. Those decisions were either overturned or remanded for a hearing.

Melissa’s lawyer said the matter now becomes a run-of-the-mill family court case where a judge will have to decide parental rights and custody.

“It’s now not an outlier at all,” said Joshua Gordon. “Whatever facts come out regarding the quality of Susan’s parenting can be told.”

New Hampshire’s Surrogacy Law lays out paternity in a number of cases, including when a man receives the child into his home and openly holds out the child as his own.

In its decision, the justices said the laws should apply to Susan, even though it uses the specific terms father and husband. In the past, the Supreme Court has not bent gender specifications, Hicks acknowledged, noting an earlier ruling that denied a man claims that he sought as a widow.

But other courts across the country have been more liberal in their interpretation of gender-specific language, the court noted.

“The policy goals of ensuring legitimacy and support would be thwarted if our interpretation of (the Surrogacy Law) failed to recognize that a child’s second parent under that statute can be a woman,” Hicks wrote.

Gordon said the decision reflects the reality of recent legislative changes. One is the state’s gay marriage law. The other is legislation on its way to Gov. Maggie Hassan’s desk that eliminates gender-specific language in the state’s Surrogacy Law.